Excerpt: - - takwani has been good enough to assist the court and he filed special criminal application no. takwani, the learned counsel appointed by the court has taken much labour in the cases and has done really a good service by way of legal aid......proper to quash and set aside the order regarding the payment of fine imposed upon him in all the cases. fine, if any to whatever extent paid in any of the cases, is ordered to be refunded to the petitioner-accused. it is stated at the bar that the petitioner has already undergone the substantive sentence and he is not required to undergo further period of substantive sentence. if that be so, he should be released forthwith if not required in any other case. rule made absolute in all the cases as aforesaid.10. before parting with the judgment, i want to place on record that shri c. k. takwani, the learned counsel appointed by the court has taken much labour in the cases and has done really a good service by way of legal aid. similarly, i must say that the learned addl. public prosecutor.....

Judgment:

A.P. Ravani, J.

1. Rule. Mr. M.A. Bukhari, A.P.P. waives service of the Rule for the respondent-State in Criminal Revision Application Nos. 516 of 1983 to 1082 of 1983.

2. During the course of hearing of Criminal Revision Application No. 92 of 1983, Criminal Revision Application Nos. 85 to 91 of 1983 and Criminal Revision Application No. 432 of 1981 filed by the present petitioner-accused, it transpired that there were more than 600 cases against the petitioner-accused on the allegation that while in service as a Police Constable at Dhanera Police Station, he came into possession of printed warrant books maintained for the purposes of journey by S.T. bus. On the strength of such warrant, a Police Constable and accused in custody and certain other persons could travel by bus up to a destination mentioned in the warrant. When such a warrant is shown to the S.T. bus conductor a person is not required to make payment of S.T. fare charges and the amount of S.T. fare charges would be later on recovered by the S.T. from the Police Department. Since the number of warrants so alleged to have been misused ran into hundreds, the cases against the accused were required to be separated on account of technical considerations. Therefore, as many as more than 600 cases were filed against him. The sentence imposed upon him was for a different period and it ranged from three months to two years. It appears that initially even the trial Court did not pass order that the substantive sentence passed in different cases should run concurrently. In some of the cases, the petitioner-accused preferred appeal and on appeal, the learned Sessions Judge, Banaskantha at Palanpur, slightly reduced the sentence imposed upon the accused and ordered that the substantive sentence imposed upon the accused should run concurrently. Thereafter, in the month of March 1983 when the aforesaid group of revision applications came up for hearing before me, almost, in despair, the petitioner-accused submitted that he had nothing to say and he submitted that he was desirous to withdraw the revision applications. A writing to this effect already prepared and kept ready was produced with the help of an officer of the jail who had accompanied with him. This was unusual. Hence I considered it necessary to probe further. On inquiry I found that a total amount of misappropriation in all the 600 and odd cases would come to about Rs. 13,000/-. The details from the jail authorities were called for. It was found that he was required to undergo substantive sentence up to November 29, 1982. The petitioner remained in jail for a period of about 4 1/2 months prior to October 29, 1980. Thereafter he again remained in jail from December 1980 onwards. The period of substantive sentence of imprisonment required to be undergone by him expired on November 29, 1982. Thereafter he was required to remian in jail because he could not pay the amount of fine imposed upon him.

3. On further inquiry it was found that the total amount of fine imposed upon him in all the cases came to Rs. 54,410/-. What an enormous amount for the petitioner-accused who was serving as a Class III servant and who became prey to certain circumstances in life And look at the tragedy. If this amount is not paid (and it was impossible for him to make payment of this amount at least in this life), he would be required to remain in jail up to October 29, 1992. Thus, for an amount of Rs. 13,000/- involved in the offences held proved against the accused, he was required to undergo imprisonment for a period commencing from December 29, 1980 till October 29, 1992 over and above 4 1/2 months' period already undergone by him prior to October 29, 1980. This would mean that he was required to undergo imprisonment for a period of about 12 years and 3 months for offences involving an amount of Rs. 13,000/-. This is shockingly disproportionate. It appeared to me that while administering formal justice, great injustice has been done to the petitioner-accused. Therefore, I ordered to take all the remaining cases into suo motu revision and called for the record. I appointed the learned advocate Shri C.K. Takwani to look into all the cases and assist the Court.

4. Mr. Takwani has been good enough to assist the Court and he filed Special Criminal Application No. 651 of 1983 and Criminal Revision Application No. 492 of 1983. In Special Criminal Application he has raised various contentions on the basis of the provisions of Articles 19, 20 and 21 of the Constitution of India and has prayed that the remaining period of sentence of imprisonment on account of default of payment of fine should be quashed and set aside and the petitioner-accused should be ordered to be released forthwith. In Criminal Revision Application, he has prayed that the order passed by the lower Courts imposing fine upon the accused in various cases be quashed and set aside.

5. As stated hereinabove, I decided to exercise my suo motu power under Section 397 read with Section 401 of the Criminal Procedure Code. The record and proceedings of the criminal cases, the details of which are given hereinbelow in the table, have been called for from the lower Court:

Criminal Case No. Date of Brief summary of the Whether appeal was filed against Total cases

6. In all these cases, for the same or similar type of offences, the accused had been charged for offences under different sections. Sometimes he had been charged for the offences under Section 380, 414, 465 and 467 of the Indian Penal Code; sometimes he has been charged only for the offences under Section 381 and 468 of the Indian Penal Code, etc. But in all these cases, he has also been sentenced to pay certain amount of fine. The total amount of fine as imposed upon him comes to Rs. 54,410/-. If he does not pay this amount of fine, he will be required to undergo sentence for different periods in default of payment of fine. The period of sentence of imprisonment in default of payment of fine would not run concurrently. In the facts and circumstances of the case, it was shocking to realise that for an offence of theft and/or cheating and forgery in respect of total amount of Rs. 13,000/-, a person may be ordered to undergo imprisonment for a period of 12 years and more. This would amount to a crushing blow on the life of the petitioner-accused. The petitioner-accused has already undergone a substantive period of sentence and has also undergone a period of sentence from November 29, 1982 onwards till today as sentence in default of payment of fine for various offences. Thus, for a period of about ten months, he has undergone the sentence of imprisonment in default of payment of fine.

7. Thus, the total period of sentence of imprisonment undergone by the petitioner-accused comes to about three years. The petitioner was a Class III employee. He hails from a lower economic strata of the society; his father is about 75 years old who is a retired First Grade Police Jamadar and he is getting a pension of about Rs. 200/- per month. His mother is aged about 70 years. At present only the pension income of his father is the source of livelihood of the family. The petitioner has two children, a son aged 5 years and a daughter aged 8 years. The petitioner's wife is alive and is staying together with the parents of the petitioner. Thus, all these persons are to be maintained from an income of Rs. 200/-per month received as pension by the petitioner's father.

8. True, there were in all about 600 cases; but, as a matter of fact, it would be only one offence. Since a number of warrants were misused on account of technical reasons, the cases were required to be separated. Only one or two printed books containing warrants for journey might have been stolen by the accused as alleged by the prosecution. Now that he has been convicted for criminal offences, he would be ineligible for any public employment including Government service. This would be almost equivalent to economic death sentence. This factor should also be taken into consideration while imposing sentence upon him.

9. Therefore, having regard to all the facts and circumstances of the case, it would be proper to quash and set aside the order regarding the payment of fine imposed upon him in all the cases. Fine, if any to whatever extent paid in any of the cases, is ordered to be refunded to the petitioner-accused. It is stated at the Bar that the petitioner has already undergone the substantive sentence and he is not required to undergo further period of substantive sentence. If that be so, he should be released forthwith if not required in any other case. Rule made absolute in all the cases as aforesaid.

10. Before parting with the judgment, I want to place on record that Shri C. K. Takwani, the Learned Counsel appointed by the Court has taken much labour in the cases and has done really a good service by way of legal aid. Similarly, I must say that the learned Addl. Public Prosecutor Shri M.A. Bukhari has taken a fair attitude and has helped the petitioner-accused who otherwise would have languished in jail for a period of 12 years. The assistance rendered by both the Counsels is highly appreciated.